[BAIL] Questions & Answers By Justice V. Ramkumar-Cancellation Of Bail-PART-III

Ans. Yes. The accused cannot be condemned unheard. He may have valid explanation to be offered for not reporting before the police, even if it is true. (See Gurudev Singh v. State of Bihar – (2005) 13 SCC 286 = AIR 2000 SC 3556 (1) - G. B. Pattanaik, U. C. Banerjee – JJ – held that the report of the process server to the effect that the accused persons refused summons cannot be treated as sacrosanct and that the accused was entitled to notice before cancellation of their bail.); Para 6 of Thammanam Shaji (P.K. Shaji) v. State of Kerala - AIR 2006 SC 100 – K. G. Balakrishnan, B. N. Srikrishna - JJ).

Q.12 Who can apply for cancellation of bail ?

Ans. The State or the aggrieved party can apply for cancellation of bail. The High Court can also cancel the bail suo motu. Any member of the public who has a concern in the matter can move the High Court for reminding it of the need to invoke the said power suo motu. (See Ratinam v. State –(2000) 2 SCC 391 = AIR 2000 SC 1851 = 2004(1) KLT 612 (SC) – K. T. Thomas, Mohapatra – JJ. )

A victim is also entitled to be heard right from the stage of investigation till the culmination of proceedings in appeal or revision. (Vide para 24 to 27 of Jagjeet Singh v. Ashish Mishra @ Monu 2022 (3) KHC 449 (SC) – 3 Judges – N. V. Ramana, Surya Kant, Hima Kohli – JJ (Criminal Appeal No: 632/2022 decided on 18-04-2022.)

Q.13 The accused has been granted bail in a case involving an offence punishable under Section 326 IPC. Subsequently, the victim dies and the Investigating Officer incorporates the offence punishable under Section 302 IPC.

Is it not a circumstance justifying cancellation of the bail already granted to the accused ?

Ans. No. Merely because a graver offence has subsequently been incorporated after the enlargement of the accused on bail, that by itself is not a circumstance to cancel the bail. For cancellation of bail, the conditions for doing so should be present. A bail can be cancelled only if the accused has been guilty of breach of the bail conditions or if he has abused the liberty granted to him. Upon incorporation of a graver offence the bail already granted to the accused earlier will not be of any avail to him. He will have to apply for fresh bail with regard to the graver offence. (See Prahalad Singh Bhati v. N.C.T. Delhi – AIR 2001 SC 1444 – K. T. Thomas, R. P. Sethi - JJ; Thomas v. State of Kerala – 2008 (3) KLT 248 – V. Ramkumar - J). In Pradeep Ram v. State of Jharkhand and Another AIR 2019 SC 3193 = 2019 Cri.L.J. 3801 – Ashok Bhushan, K. M. Joseph – JJ, it has been held as follows :-

Where after grant of bail to an accused, further cognizable and non - bailable offences are added:

(i) The accused can surrender and apply for bail for newly added cognizable and non - bailable offences. In event of refusal of bail, the accused can certainly be arrested.

(ii) The investigating agency can seek order from the Court under S.437(5) or 439(2) of Cr.P.C. for arrest of the accused and his custody.

(iii) The Court, in exercise of power under S.437(5) or 439(2) of Cr.P.C., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under S.437(5) as well as S.439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non - cognizable offences which may not be necessary always with order of cancelling of earlier bail.

(iv) In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail.

Q.14 In a murder case the High Court grants bail to the accused during crime stage. Subsequently, the accused is charge sheeted by the police and the case is thereafter committed to the Sessions Court. The accused is granted fresh bail by the Sessions Court. Thereafter the de facto complainant approaches the High Court for cancellation of the bail granted during the crime stage alleging that the accused had violated one of the conditions imposed by the High Court. Is it not permissible for the High Court to cancel the bail ?

Ans. No. The bail granted during the crime stage had worked itself out after the charge sheet was filed. The bail order which is operative is the one that was granted by the Sessions Court and not by the High Court. (Vide State of Kerala v. Moidheen Kunji – 2012 (1) KLT 203 – K. T. Sankaran - J).

Q.15 Supposing, apart from imposing conditions like prohibiting the accused from intimidating the prosecution witnesses, attempting to tamper with the prosecution evidence etc. the bail order passed by the Magistrate during the stage of inquiry also directs the accused to appear before Court on the dates of posting the case. The accused commits breach of the condition for appearance before Court by unjustifiably remaining absence. Is it a ground for forfeiture of the bond or cancellation of bail ?

Ans. It is a ground for both forfeiture of the bail bond as well as cancellation of the bail order. Since the bail condition for appearance has been breached, the bond is automatically forfeited resulting in the cancellation of the bail bond by the operation of Section 446A (a) Cr.P.C. Resultantly, the accused and the sureties have become liable for action under Section 446 Cr.P.C.

Since the bail condition for appearance has also been violated, the Magistrate can cancel the bail by resort to Section 437 (5) Cr.P.C. The fact that in cases where one of the bail conditions is for appearance, both the remedies by way of forfeiture of bond as well as cancellation of bail, are available, is indicated by the wording of Section 436 (2) Cr.P.C. which says –

“where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case, he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under Section 446.”